Ogalas Ltd (t/a Homestore and More) v an Bord Pleanála and Others

• Jurisdiction: Ireland
• Judge: Ms. Justice Baker
• Judgment Date: 23 October 2014
• Neutral Citation: [2014] IEHC 487
• Court: High Court
• Date: 23 October 2014

Ogalas Ltd (t/a Homestore & More) v Bord Pleanala & Ors

JUDICIAL REVIEW

IN THE MATTER OF SECTION 50 OF THE PLANNING AND DEVELOPMENT ACT 2000 (AS AMENDED)

BETWEEN

OGALAS LIMITED (t/a HOMESTORE AND MORE)

APPLICANT

AND

AN BORD PLEANÁLA

RESPONDENT

AND

SLIGO COUNTY COUNCIL

FIRST NAMED NOTICE PARTY

AND

SLIGO CHAMBER OF COMMERCE

SECOND NAMED NOTICE PARTY

AND

PATRICK DOHERTY, ANSON LOGUE AND WILLIAM MOFFETT c/o THE JOINT RECEIVERS KEIRAN WALLACE AND PATRICK HORKAN

THIRD NAMED NOTICE PARTIES

[2014] IEHC 487

[No. 505 J.R./2013]

THE HIGH COURT

Planning and development law - Planning permission - Retail park - Whether change of use - Judicial review - Order of Certiorari - Definition of “bulky goods” - s.5 and s.28 Planning and Development Act 2000

Facts The applicant ran a large superstore at Unit 5, Sligo Retail Park, Carrowroe, Sligo. The retail park went into receivership. The respondent concluded the use of Unit 5 constituted “development”, being a material change in use and that the material change of use was not considered exempted development. The decision was made in accordance with s.5 Planning and Development Act 2000. Peart J gave leave to apply for judicial review in the form of an order of certiorari quashing the decision of the respondent. Condition 18 of the relevant planning permission identified the range of goods permitted to be sold in Unit 5 as “bulky household goods” and “goods generally sold in bulk”. The Board came to the conclusion that the retailing activity carried out by the applicant included the sale of substantial amounts of non-bulky household goods and that in the circumstances such activity constituted a change of use from that conveyed in condition 18 of the planning permission. Bulky goods under the 2000 Guidelines were described as goods “generally sold from retail warehouses”. The definition was later enhanced by the 2012 Guidelines, adding to the definition that such goods would “normally” be taken away by car and that large areas would be needed in store to display such goods. The applicant argued the Board and inspector failed to properly interpret the definition of bulky goods and that such error amounted to an error of law. It further argued that the Board failed to have regard to the proper considerations and gave undue weight to the 2012 Guidelines. The respondents said the Board had sufficient evidence to make an informed decision and that the Inspector did not make an error in terms of interpretation. The Court had to decide whether the decision of the Board was arrived at following improper considerations and/or as a result of an incorrect interpretation of the planning permission.

Held The judge said condition 18 imported an extended, technical meaning to the phrase “bulky goods”, in that the phrase used in the condition was expressly linked to and said to be defined by the 2000 Guidelines. He concluded the words did not mean goods that were exclusively physically bulky. He indicated s.28 of the 2000 Act requires the Board to have regard to the guidelines when performing any of its functions “where applicable”. The judge said the inspector made express reference to the 2012 Guidelines in her report, yet made no reference to the 2000 Guidelines. In her report she described a substantial amount of the goods as “small, non-bulky commodities”. Her conclusion was that Unit 5 was used for the sale of both bulky and non-bulky merchandise. She said the store did not “specialise” in the sale of bulky goods and she highlighted the fact that a large portion of the store was devoted to the sale of what she described as non-bulky products that could easily be carried away on foot. The judge concluded the inspector fell into error based on her reliance on the 2012 Guidelines and in failing to have proper regard to the fact that certain goods envisaged by condition 18 may not themselves be bulky but may be part of an overall bulky purchase. She also erroneously considered the IKEA comparator. The judge considered O”Keeffe v. An Bord Pleanála [1993] 1 I.R. 39 in deliberating whether to grant an order of certiorari. The judge determined the Board was entitled to come to the conclusion it did and had before it facts upon which it could reasonably rely. The Board weighed the evidence and arrived at a reasoned conclusion. It did not fall into any error of process. Insofar as there was an error of interpretation in the inspector”s report, it did not find its way into the decision of the Board. The decision to which the Board came was one which was within its jurisdiction and was neither irrational nor unreasonable, nor was it made as a result of a mistake of law.

-Relief sought refused

PLANNING & DEVELOPMENT ACT 2000 S5

PLANNING & DEVELOPMENT ACT 2000 S5(1)

PLANNING & DEVELOPMENT ACT 2000 S5(4)

ROADSTONE PROVINCES LTD v BORD PLEANALA UNREP FINLAY GEOGHEGAN 4.7.2008 2008/55/11515 2008 IEHC 210

PLANNING & DEVELOPMENT ACT 2000 S3(1)

PLANNING & DEVELOPMENT ACT 2000 S5(3)

DEPT OF THE ENVIRONMENT GUIDELINES FOR PLANNING AUTHORITIES: RETAIL PLANNING 2012 ANNEX 1

DEPT OF THE ENVIRONMENT GUIDELINES FOR PLANNING AUTHORITIES: RETAIL PLANNING 2012 ANNEX 1 A1.2

EVANS v BORD PLEANALA UNREP KEARNS 7.11.2003 2004/18/4037

XJS INVESTMENTS LTD, IN RE 1986 IR 750 1987 ILRM 659 1986/8/1935

PLANNING & DEVELOPMENT ACT 2000 S28

MCEVOY & SMITH v MEATH CO COUNCIL 2003 1 IR 208

PLANNING & DEVELOPMENT ACT 2000 S27(1)

TRISTOR LTD v MIN FOR THE ENVIRONMENT & ORS UNREP CLARKE 11.11.2010 2010/50/12548 2010 IEHC 397

PLANNING & DEVELOPMENT ACT 2000 S146(1)

PLANNING & DEVELOPMENT ACT 2000 S146(2)

MICHAEL CRONIN (READYMIX) LTD v BORD PLEANALA 2009 4 IR 736 2009/39/9532 2009 IEHC 553

CORK CITY COUNCIL v BORD PLEANALA 2007 1 IR 761 2006/12/2387 2006 IEHC 192

STACK v BORD PLEANALA UNREP O'NEILL 11.7.2000 2000/17/6370

O'KEEFFE v BORD PLEANALA & O'BRIEN 1993 1 IR 39 1992 ILRM 237

WESTON LTD v BORD PLEANALA UNREP CHARLETON 1.7.2010 2010/53/13257 2010 IEHC 255

TREACY v BORD PLEANALA UNREP MACMENAMIN 22.1.2010 2010/50/12507 2010 IEHC 13

M & F QUIRKE & SONS & O'CONNOR v BORD PLEANALA & ORS 2010 2 ILRM 93 2009/38/9488 2009 IEHC 426

1 JUDGMENT of Ms. Justice Baker delivered the 23rd day of October, 2014

2 1. The applicant operates a large store, of the type now commonly called a superstore, under the style of Homestore and More ("HSM") from premises at Unit 5, Sligo Retail Park, Carrowroe, Sligo and has done so since 28 ^th October, 2011. Sligo Retail Park is currently in receivership and the joint receivers, Kieran Wallace and Patrick Horkan are third named notice parties to this application for judicial review. Neither they nor the other notice parties took any active part in the application before me.

3 2. Peart J. on 8 ^th July, 2013 gave leave to apply for judicial review in the form of an order of certiorari quashing the decision of the respondent made on 23 ^rd May, 2013 that the use by HMS of Unit 5 for the type and class of goods being sold from the store was properly characterised as development, and that that development was not exempted. Leave was also given for an ancillary order remitting the decision to the respondent and a stay was granted on the decision pending the final determination of this application.

4 3. The decision of the Board was made pursuant to s. 5 of the Planning and Development Act 2000. Subsections (1) and (4) provide as follows:-

5 2 "5 (1) If any question arises as to what, in any particular case, is or is not development or is or is not exempted development within the meaning of this Act, any person may, on payment of the prescribed fee, request in writing from the relevant planning authority a declaration on that question, and that person shall provide to the planning authority any information necessary to enable the authority to make its decision on the matter.

6 (4) Notwithstanding subsection (1), a planning authority may, on payment to the Board of such fee as may be prescribed, refer any question as to what, in any particular case, is or is not development or is or is not exempted development to be decided by the Board."

7 4. It is well recognised in the authorities that the Board's function in determining a reference under s. 5 of the Act of 2000 is limited to a question of whether a particular use or the carrying out of any works constitutes development. The Board has no role in determining whether any use is authorised and this is clear from the judgment of Finlay Geoghegan J. in Roadstone Provinces Limited v. An Bord Pleanála [2008] IEHC 210 where she stated that on a s. 5(4) reference, the Board "may only determine what is or is not 'development'." Section 3(1) of the Act of 2000 defines development as meaning:-

"carrying out of any works, on, in, over or under land or the making of any material change in the use of any structures or other land."

Planning history

8 5. Sligo Retail Park operates under parent planning permission granted by Sligo County Council on 1 ^st August, 2003, for a retail warehouse park incorporating 12 units, and containing a DIY store and garden centre, leisure unit and fast food restaurant. The initial planning permission for Unit 5 was for leisure use, but by order of 26 ^th October, 2004, the parent permission was altered to substitute the use for Unit 5 as a retail warehouse and which permitted an increase in the mezzanine floor area of the unit. That planning permission, which issued on appeal by the Board, contained condition 18 which provides as follows:-

"The retail element of the proposed development shall be restricted to retail warehousing development only. In this regard, the range of goods to be sold in the retail units shall be restricted to bulky household goods and goods generally sold in bulk (as defined in Annexe 1 of the Retail Planning Guidelines...